A Madison dad faces deportation for smoking weed as a teenager

Vale-Schesch and Timofeev still plan to get married. But his immigration troubles must be resolved first.

By the time Alex Timofeev got home from work at the Nakoma Country Club, had dinner and relaxed with his customary cup of tea, it was past midnight. When the doorbell rang in the early morning he tried to ignore it. But the ringing was insistent so he left his fiancée in bed, threw on some boxer shorts and went to the front door.

Timofeev says he found an "unassuming lady" who identified herself as an official with U.S. Immigration & Customs Enforcement, or ICE. At first he hoped it was about his petition for permanent residency, which he says has been in the works for years. "I thought, finally, some questions are going to be answered."

But the officer propped open the door, and a second officer, who had been standing by his van, ran over. Both followed Timofeev up the stairs to his second-floor apartment near Warner Park on Madison's north side.

The officers told Timofeev they had a warrant for his arrest but would not answer any questions. One walked around the apartment, checking all the rooms. Timofeev tried to text his boss at the country club, where he works as a chef, to say he wouldn't be in that day, but was told he couldn't make any calls.

"They would not let him brush his teeth, they would not let him go to the bathroom or put on his pants without supervision," recalls fiancée Elizabeth Vale-Schesch of that morning in late September.

Timofeev, 35, was taken in handcuffs to the Milwaukee office of ICE, where officials told him he had "abandoned" his citizenship petition and was going to be deported because of marijuana possession convictions in Dane County dating back to 1996. He was allowed one call and was then taken to Dodge County Detention Facility in Juneau.

Born in the former Soviet Union, Timofeev was 14 when he moved with his family to Madison in 1992. By the time he was 19, he had been convicted three times in Dane County of possessing marijuana. He pleaded no contest each time.

Timofeev's immigration attorney, Milwaukee-based Davorin Odrcic, filed a motion in Dane County Circuit Court on Dec. 17, 2012, asking for his client's pleas from the 1990s to be vacated. Odrcic argued that Timofeev had not been apprised by his attorneys at the time that such pleas could result in his deportation.

Dane County Circuit Court Judge Ellen Berz issued a written decision on Jan. 24 siding with Timofeev, and he was released from ICE custody after spending more than four months in detention. But the state Department of Justice, at the request of the Dane County District Attorney's Office, appealed the circuit court's decision. So Timofeev is once again facing removal from the country.

Before the hearing on the motion, friends, family and coworkers sent letters to Dane County District Attorney Ismael Ozanne, attesting that Timofeev's days of using drugs were long over. The letters laud his hard work, talent as a chef, friendship and, above all, the way he dotes on his two daughters, Sasha, 16 and Kylie, 7.

"He may not have full custody, but he is an active, vital and important part of their lives," wrote his best friend, Zachariah Olson, who has known Timofeev since both were 14. "Alex pays child support. Alex pays for clothes and toys. Alex provides shelter and food to his oldest daughter, Sasha.... These are just monetary things, there are important emotional and social aspects to fathering a child as well. Who is going to pick up that slack if Alex is deported?... Do we really expect [his children] to cope positively with such a loss?"

In the meantime, Timofeev's life is on hold. He can't work and therefore has no income. Along with other bills, his child support payments are now accruing with interest. That is particularly painful to Timofeev, who takes his obligations to his children seriously. He no longer even owns a car to save money.

"I never minded paying child support," he says. "I never tried to get it lowered. I was paid up to the penny."

Timofeev has not been back to Russia and has no relatives left there. His daughters, fiancée, parents and friends are all here.

"I have nothing there," he says.

Moreover, any deportation would be final.

"If they send me away I can never come back. Not in five years, not in 10. Never."

Timofeev, of course, is not alone. Last year the Department of Homeland Security removed more than 400,000 individuals classified as "aliens" from the United States. More than half of these were "convicted criminals," a catch-all category that includes nonviolent offenders like Timofeev as well as murderers.

The immigration maze

These days Timofeev wears his thick, strawberry blond hair in a tight ponytail. He and one of his brothers, who is also growing out his hair, plan to donate their locks to a charity that gives hairpieces to low-income children suffering from medical hair loss.

Timofeev speaks with a thick Wisconsin accent at a rapid clip, though he spoke little English when he arrived in Madison at 14. He entered East High School as a freshman and struggled to fit in. It didn't help that his parents had little money. "They dressed me in things from St. Vinny's before it was cool."

The freedom he found in the States was "a little overwhelming," he admits. He says pot was widely available in high school, and the majority of kids he knew smoked it. That was not the case in his home country.

"As any parents we warned Alexander about the dangers of certain habits and behaviors; however, drug abuse was not among these habits because it was not an issue in the U.S.S.R. in the ninetieths [sic]," Elena Timofeeva, Alex's mom, wrote in a letter to District Attorney Ozanne. "We, as parents, were also unprepared to face the drug problems, and it took us much longer than it should have to realize what is wrong in Alexander's life."

Timofeev was 18 when first charged with possessing marijuana. He was represented by a law student through an attorney-supervised clinical program at the University of Wisconsin Law School that no longer exists. On Nov. 25, 1996, he pleaded no contest to a misdemeanor.

On May 20, 1997, Timofeev was charged with his second marijuana offense, which the District Attorney's Office at the time elected to charge as a felony. He pleaded no contest to that charge and was convicted on Aug. 7, 1997. And on April 7, 1998, he again pleaded no contest in Dane County court to a third charge of marijuana possession.

At that point Timofeev was sentenced to jail, but was able to serve his time through the Huber work-release program. He was also ordered to go through drug rehab. He completed all the terms of his sentence.

By then Timofeev was out on his own. He had moved out of his parents' home at 17, when his drug use became a source of contention. About a year later, he and his girlfriend, a United States citizen, got married and had a daughter, Sasha.

About the same time his dad lost his job at UW-Madison, and his parents and two brothers moved to Sheboygan. They pursued their own path to permanent residency while Timofeev went solo, without the aid of an immigration attorney.

"Me and my ex-wife tried to fill out all the paperwork needed," he says. "At some point it hit a snag because no one got back to me from the INS offices."

Since the terrorist attack of 9/11, Timofeev says, it's become increasingly difficult to meet with officials at the Milwaukee immigration field office or to reach anyone by phone to get information. "You can spend hours lost in the maze of automated answers," he says.

"During the four years we were married we made many trips to Milwaukee in an effort to acquire his green card," she wrote in a letter to District Attorney Ozanne. "We waited for long periods of time and filled out many pages of paperwork. We did everything we could to abide by our country's immigration laws."

An immigrant must first obtain a green card, which denotes permanent residency, before applying to become a United States citizen.

While waiting for the process to play out, Timofeev says he's hardly been in hiding.

"I have a Social Security number issued to me by the government," he says. "I've been using the same name, same Social Security number since I've come here. I pay taxes, I pay my bills, I pay my rent in my own name."

A manifest injustice

A 2008 report by the Center on Wisconsin Strategies, a progressive think tank housed on the UW-Madison campus, notes the recent sociodemographic changes that have made immigration such a contentious and political issue. The three decades between 1970 and 2000, for instance, saw "larger net inflows of new foreign immigrants than any previous decade in U.S. history," according to the report. And immigrants now live all over the country, no longer concentrated in such states as California, Texas, New York and Florida.

The federal government responded to these changes by making it harder to enter the country and "by narrowing [immigrants'] political and economic rights," say the authors of the report. Congress got tough on immigrants in the 1980s and even tougher in the '90s. One new law, the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, expanded the range of offenses for which immigrants could be deported. And it is why Timofeev is facing permanent banishment to Russia.

Under the law, immigrants convicted of most felonies are deportable. They are also "permanently inadmissible" to the United States. There is no statute of limitations for deportable offenses: Attorney Odrcic says he's had two clients placed in removal proceedings for drug convictions from the early 1970s.

Immigration judges have no discretion in these instances to consider whether previous offenders have since led a sterling life or whether deportation would result in severe hardship to them, their children or family.

That is why "post-conviction relief," says Odrcic, is "Alex's only option to avoid removal to Russia."

On January 14, Timofeev was taken from his cell at the Dodge County Detention Facility to Dane County Court for his post-conviction hearing before Dane County Judge Berz.

Odrcic argued to Berz that, based on the 2010 U.S. Supreme Court ruling in Padilla v. Kentucky, Timofeev's old convictions should be vacated because he had not been apprised of the consequences of his pleas when he agreed to them more than 10 years ago. As proof, Odrcic presented affidavits from the three lawyers who had represented Timofeev in his respective cases. None of the attorneys could say with certainty that they had detailed the deportation risks when counseling Timofeev.

"I did not realize my convictions were an immigration problem until I was detained by ICE last month and placed into deportation proceedings," Timofeev said himself in a sworn affidavit on Oct. 23, 2012. "I was very shocked when I learned that my convictions carried such serious immigration consequences."

Assistant District Attorney Matt Moeser argued against vacating Timofeev's convictions, but Berz issued a written decision siding with Timofeev.

Berz said the Padilla ruling could be applied retroactively in post-conviction cases and argued that the withdrawal of Timofeev's pleas is "necessary to correct a manifest injustice."

Ozanne says his office asked the Department of Justice to appeal Berz's ruling since the U.S. Supreme Court has since ruled that Padilla cannot be applied retroactively. The first brief in that case is due July 12. Ozanne says he didn't originally agree to withdraw Timofeev's old convictions because a request for such "doesn't mean we should necessarily turn around and vacate." But he allows that some of the consequences of how convictions are handled for immigrants "are coming to light now which may not have been considered previously."

'I love you so very much'

Of the 409,849 individuals removed in 2012 from the United States, according to the latest data from the Department of Homeland Security, about 55%, or 225,390, were convicted of felonies or misdemeanors: 1,215 for homicide; 5,557 for sexual offenses; 40,448 for drug offenses; and 36,166 for driving under the influence. Gail Montenegro, spokeswoman for the ICE regional office in Chicago, says almost twice as many criminals were removed last year as in 2008.

"U.S. Immigration and Customs Enforcement is focused on sensible, effective immigration and enforcement that prioritizes the removal of criminal aliens and egregious immigration law violators," she emailed in a statement.

Montenegro was unable to provide any statistics on the number of parents deported with children who are U.S. citizens. But ColorLines, an online news journal published by the Applied Research Center, a racial justice think tank, obtained federal data through a Freedom of Information Act request that gives some idea of the phenomenon. According to the journal's report, nearly 23% of all deportations -- or 204,810 removals -- between July 1, 2010, and Sept. 31, 2012, were issued for parents with citizen children.

This is a scenario that has hit Mexican immigrants the hardest, in Madison and across the country.

"I have a lot of Latino friends, so I've seen it happen a lot," says Sasha, Timofeev's oldest daughter. "One friend I had in middle school, the father was deported. The rest of the family stayed here."

Sasha, a student at Memorial High School, likes photography, acting and cooking with her dad, whom she stays with on weekends and when school is out.

She says she's weathered the stress so far, even during her dad's prolonged stay at the detention center. But, she adds, "I don't think I could take him actually leaving."

"We're really close," she says. "He's definitely one of my favorite people. He's funny and it's really good. We never fight or anything."

Timofeev's younger child, Kylie, lives with her mom, Crystal Dilbeck, in Sheboygan. Timofeev calls her every day without fail.

In a letter to District Attorney Ozanne, Dilbeck said she could see what an "amazing dad" Timofeev was even before they had Kylie.

"I can still remember when he biked all the way from Sheboygan to Madison so he could spend the weekend with [Sasha]," Dilbeck wrote. "He also biked to Sheboygan after he moved [back to Madison] just to spend time with Kylie.... She looks forward to his phone calls every day and even when he is at work he finds a way to make the call."

Kylie sends her dad lots of letters, and Timofeev saves all of them. Kylie's Father's Day card this year pictures the two of them sitting in chairs at a table, around which she's written "tea," "tea," "tea." Alex drinks tea all day, perhaps one of the only traditions he carries over from Russia. "It's like water over there," he says.

Kylie sent her dad many notes when he was confined at Dodge. One said simply, "I love you so very much. I wish I could see you every day."

Timofeev saw family members while in detention but, even on Kylie's birthday, was not allowed to touch her or give her a hug or kiss. It was tough in many other ways. A free spirit who is used to biking 30 to 40 miles a day around Madison, Timofeev was suddenly locked in a tiny room. "It's quite a shock mentally and physically," he says. And he found very little to eat that was appealing or seemingly nutritious.

He says he was surrounded mostly by Mexican nationals, all contemplating their potential separation from family. "It's a really, really sad place," he says. "Nobody knows what's happening. Some are completely defeated."

No help from Congress

Timofeev says there has already been damaging fallout from his arrest and detention. No longer able to work, he can't help out with the household expenses. The burden for this has fallen to his fiancée, Elizabeth, who works part-time and attends community college. His inability to pay child support has also meant less household income for his ex-wife and Kylie's mom. His legal fees, now around $60,000, have also eaten into his parents' small nest egg -- something he says he feels sick about.

And there is the everyday worry of not being around to care for his kids or his parents as they age. His father has diabetes and has lost both legs to the disease.

Alex and Elizabeth were planning to get married before ICE knocked on the door. They still want to, but there's a Catch-22.

If married to Elizabeth, a United States citizen, Alex could apply for permanent residency through her. But the couple can't move forward until there is resolution on the appeal of his case.

While immigration reform could theoretically provide a remedy, nothing in the pending federal bill, approved by the Senate June 27, would offer relief to Timofeev or others in his situation.

In fact, the bill "provides for several changes to immigration law that increase the immigration consequences of certain criminal conduct," according to an analysis by the National Immigration Law Center. For instance, people who have committed three or more offenses on separate dates related to driving under the influence or driving while intoxicated are both deportable and inadmissible.

"This would be a big change," says Odrcic, "and it highlights the fact that Congress is not even contemplating a rollback of the 1996 law that affected Alex's case. It is going in the other direction."

Outpouring of support

Odrcic says he was astonished when he entered the courtroom in January for Timofeev's hearing.

"I've done lots of hearings in my 12 years of being a lawyer, and I've never had an evidentiary hearing where the gallery was packed with supporters."

These supporters have continued to plead Timofeev's case. In fact, they have apparently been so persistent that Assistant Attorney General Gregory Weber wrote Odrcic in early June, asking him to urge his client's supporters "not to call this office." But, Weber added, "We will read any letters they may wish to send us."

Timofeev, for his part, has been touched and a little surprised by the outpouring of support.

"It makes me want to cry," he says. "I didn't know so many people found me special."